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Case update 24 March 2022

An update from the Court of Appeal

In June, we explained that we were appealing the High Court’s decision that – due to a mistake by our external solicitors – our case about the award of contracts to Pharmaceuticals Direct Limited could not proceed. Today, a split Court of Appeal has rejected our appeal, with one judge for us and two against.

Our external solicitors emailed the claim form that commences proceedings directly to the Government lawyers working on the case, as they had been asked to do, but failed to send it to a generic “new proceedings” email address by way of formal “service”, as had also been requested. The Government’s lawyers confirmed receipt of the papers almost immediately after receiving them but did not flag that the “new proceedings” email had not been copied until one day after the deadline for service.

This mistake had no practical consequences for the Government’s ability to prepare a defence, since their solicitors were aware of the claim well before the deadline. However, two of the Court of Appeal judges hearing the case have found that it should nonetheless prevent the claim from being pursued. 

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The dissenting Judge in this case has given a forthright judgment, observing that the mistake did not have (and was never likely to have) any practical consequences whatsoeverand: 

“If service is not to be validated retrospectively in such circumstances, form really has triumphed over substance and litigation has become a game of forfeits: the overriding objective, to deal with cases justly, has itself been overridden.”    

We agree, which is why we will seek permission to appeal to the Supreme Court.

Decisions like this have real consequences. A company with connections to Ministers was paid almost double the going rate for facemasks, even though Government had been offered cheaper alternatives. If the claim can’t be heard, the public may never know why.

If this decision is overturned by the Supreme Court, then we will have the opportunity to pursue this important issue. If the appeal fails, then it is our expectation that our external solicitors will meet all the costs wasted by the error, both our costs and the costs we will incur to the Government, including of those appeals.

We employ the best lawyers available, but lawyers are human and mistakes do happen. We continue to instruct Bindmans in this and other cases – and to be entirely confident we are right to do so.

We will keep you updated, as always.

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